Is it forever? Or when there is reasonable suspicion of an upcoming case? Does the pre-suit duty to preserve begin by just a letter by a putative plaintiff which even contemplates a suit? Or perhaps when the suit hits? Without a definitive landmark, it is impossible for organizations and legal teams to plan for litigation. And in a world which runs on dependable schedules and efficiency, that means costly and protracted reaction.
Siani relies upon the the work-product doctrine, which encompasses documents that are prepared “in anticipation of litigation.” As Practical e-Discovery mentions, Siani v. State Univ. of New York reached the reasonable conclusion, 'that if litigation was reasonably foreseeable for one purpose, “it was reasonably foreseeable for all purposes."' Which means that the duty to preserve begins with the creation of any work-product.
The work-product doctrine slices both ways, since by invoking it for protection means that to the organization, litigation was reasonably anticipated and the duty to preserve had been triggered at that point. Again, this translates into the fact that the beginning of the work-product immunity should be the beginning of related electronically stored information (ESI) on legal hold.
In effect, companies must enact legal hold the moment in which documents are prepared in anticipation of litigation. There is no way to do so without a proactive archiving and e-Discovery tool already in place, because otherwise there would be reliance on the custodian (potentially those involved) to retain their own (potentially incriminating) documents. And as we have seen in Adams v. Dell, there continues to be a large question in custodian-trusted legal hold.
As more and more of these cases evolve, organizations must focus on proactive e-Discovery.
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